MAGISTRATE JUDGE'S REPORT

STEPHEN C. RIEDLINGER, Magistrate Judge.

Before the court is a Motion to Remand filed by plaintiffs Roshaunda Jackson, individually and on behalf of her minor child Jackson Cayden Dukes, and Cornell Dukes. Record document number 20. The motion is opposed.1

For the reasons which follow, the plaintiffs' Motion to Remand should be denied.

Background

Plaintiffs Roshaunda Jackson and Cornell Dukes filed a Petition for Damages, and a Supplemental and Amending Petition for Damages, in state court seeking damages for injuries to their then-unborn child resulting from exposure to chemicals at her workplace, specifically the herbicide Glyphosate Technical ("Glyphosate"). Jackson was employed as a process engineer at Syngenta Crop Protection, LLC, and allegedly worked at times in an area of the facility where Glyphosate particles, which the parties call "dust," were not properly collected and remained in the air. Plaintiffs alleged that Syngenta and certain of its employees failed to prevent her exposure to Glyphosate or warn her of the potential harm from being exposed to Glyphosate. Plaintiffs alleged that exposure to the Glyphosate caused Jackson's child to be born with birth defects, including developmental and respiratory abnormalities.

Among the defendants, the plaintiffs included Louisiana residents Melinda Sanford and Mark Graham.2 Defendants Sanford and Graham were employed by Syngenta as the plant head nurse and a staff industrial hygienist, respectively. Plaintiff alleged that Sanford and Graham participated in an evaluation of her potential occupational chemical exposure after she disclosed to Syngenta that she was pregnant.

Defendant Syngenta removed the case to this court asserting subject matter jurisdiction under 28 U.S.C. § 1332, specifically alleging that the citizenship of the Louisiana defendants should be ignored because they were improperly joined. Defendant asserted that the plaintiffs failed to allege sufficient facts to state a cause of action against the Louisiana defendants. Specifically as to defendants Sanford and Graham, defendant Syngenta asserted that they did not breach any personal duty owed to plaintiff Jackson in connection with her alleged exposure to Glyphosate.3

Plaintiffs moved to remand, arguing that defendants Sanford and Graham were not improperly joined and the defendants cannot show that there is no possibility of establishing a cause of action against them. In support of their argument, the plaintiffs asserted that defendants Sanford and Graham contributed to a Reproductive Health Hazard Evaluation which assessed the chemical and physical hazards to which Jackson and her unborn child would be exposed during her employment. Plaintiffs asserted that defendants Sanford and Graham failed to address the dangers to her and her unborn child from exposure to Glyphosate. Plaintiffs also argued that neither Sanford nor Graham involved a Syngenta occupational health physician in the evaluation, which violated a Syngenta procedure requiring a physician to contribute to the evaluation. Plaintiffs argued that defendants Sanford and Graham were personally assigned to perform Jackson's evaluation and that the negligent acts described above breached their personal responsibilities owed to the plaintiffs.

Applicable Law

The party seeking removal based on improper joinder of an in-state party bears a heavy burden of proving that the joinder was improper. Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002). The statutory basis for the doctrine of improper joinder is found in 28 U.S.C. §§ 1441 and 1359. Smallwood v. Illinois Cent. R. Co., 385 F.3d 568, 572 (5th Cir. 2004), cert. denied, 544 U.S. 992, 125 S.Ct. 1825 (2005). Since the purpose of the inquiry is to determine whether the in-state efendant was properly joined, the focus must be on the joinder, not the merits of the plaintiff's case. Id.

There are two recognized ways to establish improper joinder: (1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court. Id., Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003). In the latter situation the test for improper joinder is whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against the in-state defendant. Stated another way, there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant. Smallwood, 385 F.3d at 573; McDonal v. Abbott Laboratories, 408 F.3d 177, 183 (5th Cir. 2005). The court may decide the question of whether the plaintiff has a reasonable basis of recovery under state law either by employing a Rule 12(b)(6), Fed.R.Civ.P., analysis, or by piercing the pleadings and conducting a summary judgment inquiry. Id. In resolving questions of improper joinder, all disputed questions of fact and ambiguities in the controlling state law are resolved in favor of the non-removing party. Carriere v. Sears, Roebuck and Co. 893 F.2d 98, 100 (5th Cir.), cert. denied, 498 U.S. 817, 111 S.Ct. 60 (1990).

Individual Officer Liability

The state law governing the court's analysis of the improper joinder issue in this case is Louisiana's law setting forth the circumstances under which a corporate officer or employee can be held individually liable for injuries to third persons. This law is explained in Canter v. Koehring Co., 283 So.2d 716 (La. 1973). In Canter the court adopted the following criteria for imposing liability on individual officers or employees for breaching a duty arising solely because of the employment relationship:

Id. at 721; Guillory v. PPG Industries, Inc., 434 F.3d 303, 312 (2005).

Analysis

Louisiana Defendants Sanford and Graham were improperly joined

A review of the allegations in the plaintiffs' Supplemental and Amending Petition for Damages, and the record at the time of removal, demonstrates that the plaintiffs have not alleged a valid claim against either defendant Sanford or Graham.

Plaintiffs alleged that these defendants failed to use reasonable care to properly protect female employees from hazardous chemicals during pregnancy, and failed to warn of the potential impact that exposure to Glyphosate would have on their reproductive health.4 Although Sanford and Graham participated in/conducted Jackson's evaluation, performance of this duty was a general responsibility of their employment and does not alone create a personal duty owed to the Jackson. The application of the alleged Syngenta evaluation protocol was a general administrative responsibility owed to any Syngenta employee who was evaluated; it did not create a personal duty to Jackson arising from some relationship with Sanford or Graham which was unique to her.

With respect to the plaintiffs' failure to warn claim, under Louisiana law personal fault can only be established upon showing that defendants Sanford and Graham knew or should have known of both (1) Jackson's exposure to Glyphosate and (2) the potential harm the chemical could cause to her or her unborn child. However, the plaintiffs have failed to provide any substantive facts to demonstrate that either defendant had actual knowledge of any potential harm from exposure to Glyphosate. In fact, the plaintiffs alleged in their original petition that the Material Safety Data Sheet ("MSDS") for Glyphosate was updated in May 2011 by defendant Monsanto and revealed that the chemical had teratogenic properties and could cause birth defects.5 This allegation demonstrates that neither Sanford nor Graham could have had any knowledge, based on their employment with defendant Syngenta, of the harmful effect from exposure to Glyphosate at the time of plaintiff Jackson's evaluation in February 2009.6 Absent actual or constructive knowledge of the alleged harmful nature of Glyphosate at the time of plaintiff Jackson's evaluation, neither defendant had a personal duty to warn her of its potential dangers.

Because the defendants have shown that neither defendant Sanford or Graham owed a personal duty to plaintiff Jackson, under Canter these defendants cannot be held individually liable for the alleged injuries to the plaintiffs' or their child.

Relying on Smallwood, the plaintiffs argued that there is no improper joinder here because Syngenta's improper joinder argument applies equally to the other defendants.7 Plaintiffs are wrong. Defendants Sanford and Graham were improperly joined because they owed no personal duty under Canter to plaintiff Jackson. The applicability of this no-personal-duty defense does not compel the same result for diverse defendant Monsanto.8 Rather, the plaintiff's defective product claim against defendant Monsanto fails at the first analytical step: plaintiffs concede that defendant Monsanto's product was not involved in plaintiff Jackson's alleged Glyphosate exposure because its product was in the form of a wet cake which created no dust.9

Conclusion

Defendants have shown by a preponderance of the evidence that there is no reasonable basis for this court to predict that the plaintiffs might be able to recover against defendants Sanford or Graham in their individual capacity under Louisiana law. Because defendants Sanford and Graham were improperly joined their citizenship is disregarded. Plaintiffs conceded that the other non-diverse defendants were improperly joined. Consequently, because there is complete diversity of citizenship between the plaintiffs and remaining defendants Syngenta and Monsanto, the court has diversity jurisdiction.

RECOMMENDATION

It is the recommendation of the magistrate judge that the Motion to Remand filed by plaintiffs Roshaunda Jackson, individually and on behalf of her minor child Jackson Cayden Dukes, and Cornell Dukes be denied.